Are Open-Source Licenses Legal?

For all the media attention devoted to the open-source movement, the legal standing of licenses such as the GNU General Public License (GPL) has received little attention. But there's some concern among open-source advocates.

"The biggest issue is that none of these licenses have been tested in court," said Apache project co-founder Brian Behlendorf at the O'Reilly Open Source Software Convention this week.

Open-source licenses don't fit well with what the courts expect a mass sales agreement to look like, said Don Rosenberg, a software licensing consultant and author of the forthcoming book Open Source: The Unauthorized White Papers. The GPL attempts to bind users by requiring them to make public the source code to any commercial products based on the GPL code.

"The courts generally, but not always, hold that ‘shrink-wrap' licenses - that is, those that simply come with the software - can't bind the receiving party unduly," said Rosenberg. But the Uniform Computer Information Transaction Act, passed in only a couple of states so far, would strengthen shrink-wrap licenses and thus could also make open-source licenses stronger, Rosenberg said.

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